How Congress' Attempt To Break CDA230 Could Kill Airbnb

from the liability-liability-liability dept

Earlier this week, we wrote about a dangerous bill to punch a giant hole in Section 230 of the CDA. We spent a lot of time in that post detailing how problematic the bill is and how it would actually be counterproductive to the stated goal of stopping human trafficking. But, beyond just being counterproductive to the stated goal, the bill would likely create fairly massive negative consequences for tons of internet companies. If anyone used any part of that company's products and services for trafficking, it would open up companies not just to liability, but to costly legal action, even if they're eventually vindicated.

And I wanted to dig into one example: Airbnb. As we've discussed in the past, Airbnb relies heavily on CDA 230, because otherwise, any time anything went wrong with an Airbnb hosted place, Airbnb would face potentially crippling lawsuits. And I'm thinking about Airbnb specifically, because of a recent ruling that Eric Goldman pointed out, in which Airbnb's largest competitor VRBO was saved by CDA 230. You can go over to Eric's blog to read the details, but the really short version is that someone booked a "luxury resort" via VRBO for a ridiculous sum of money, and the rental units never happened. The victims targeted VRBO with the lawsuit, but the court has none of it.

The plaintiffs claimed VRBO qualified as a “seller of travel services,” which would subject it to heightened regulation. The court disagrees: “HomeAway merely provides a venue for others to sell or provide lodging, but does not provide the actual facility where people can ‘lodge.'” See the uncited SF Housing Rights Committee v. Homeaway ruling. Further, if VRBO did constitute a seller of travel services, Section 230 would apply: “To hold HomeAway liable for misleading or inaccurate material (e.g., images from another property listing appearing on a different HomeAway website being duplicated on the VBRO.com Jewels of Belize rental account) in the third party created Jewels of Belize listing contravenes Section 230 of the CDA.”

To get around Section 230, the plaintiffs invoked VRBO’s “Basic Rental Guarantee,” which provides reimbursement for certain types of fraud (but doesn’t cover direct wire transfers like those at issue here). VRBO denied the reimbursement claim, concluding that the listing came from an authorized property owner and the property actually existed (but apparently had serious problems). The court says VRBO did what it promised to do in the “guarantee.” The fact VRBO used the term “guarantee” (a term I wouldn’t have chosen personally) didn’t convert the reimbursement promise into something more.

Now, there's a somewhat reasonable argument to be made that it would be smart business strategy for VRBO to handle the situation better and to reimburse these people. But making the company legally liable is another story.

So, now let's get back to SESTA, the bill that was released earlier this week. Surely, some of you are thinking, that's not a big deal for Airbnb? After all, everyone's just talking about how it's designed to takedown Backpage (ignoring that Backpage already shut down its adult section, and current law already lets the DOJ go after Backpage if it violated federal trafficking laws). And Airbnb isn't Backpage. But... there actually have been a whole bunch of stories this year claiming that prostitutes are now using Airbnb. And, with some folks trying to conflate prostitution with trafficking, is it any stretch of the imagination to think lawyers will start suing Airbnb, claiming it's violating federal anti-trafficking laws?

As Eric Goldman asks in his post:

In light of that, how would Airbnb and VRBO change their behavior to reduce their potential liability for sex trafficking pursuant to the proposed bills? Heck if I know, and I doubt Congress knows either.

Put yourself in the shoes of Airbnb and tell me: how would you completely rule out that anyone could possibly abuse the Airbnb service for trafficking? It's... not easy. This doesn't mean Airbnb wants this activity to happen via it's platform. I'm 100% sure that it does not. It would be thrilled if there were an easy to way to stop it. But... it's not. Like, this is a basic impossibility. And yet, if it happens, then suddenly the companies themselves could be liable for criminal activity. Criminal activity that was done by others, that Airbnb would have no effective way to stop, short of shutting down the site or doing something ridiculous and drastic. That... seems like a pretty big overreaction. Yes, trafficking is a problem, but this bill is sending a wrecking ball through the internet as it seeks out one particular company.

And, yes, I get that some people don't like Airbnb, so maybe they're fine with this kind of collateral damage, but Airbnb is just one example here. Plenty of other sites that you probably do like will face similar problems. This is a bad bill that won't even help with its stated goals, but will create serious problems for people around the globe.

Open the troll floodgates

I think the most harmful effects of this will be the wave of trolling designed to get sites removed. Forget the Thiel strategy, if this passes, when you don't like critical coverage, just stage numerous trafficking posts in their comments.

Re: How can removing exceptions for "teh internets" and restoring to as decades prior be "counterproductive to the stated goal of stopping human trafficking"?

Re: How can removing exceptions for "teh internets" and restoring to as decades prior be "counterproductive to the stated goal of stopping human trafficking"?

I don't see your point.

All he's saying is that this bill does more than just allow law enforcement to go after traffickers, it allows sites to be liable and responsible for the behavior of the people who use their site.

A similar analogy would be if you decided to hold Microsoft liable and blame them for every single piece of malware or hack that people come up with for Windows. Microsoft didn't write the malware/hacks, nor is it their intention for their software to be used that way, you don't blame them, you blame the people who came up with the malware/hacks.

It's the same thing here, Airbnb and other websites like Craigslist and Backpage didn't intend for their sites to be used for trafficking nor do they want them to be used in such a manner. But people do because anyone can use it. Why would you hold a site liable for something they didn't do? That's the whole point of 230. This new law works to strip that protection.

Off topic question

Mike, I know this is off topic to this article, but I don't see a way to contact TechDirt other than twitter, so I am jumping in here. I guess I could find away to connect some dots, but I won't bother.

I just read about Sinclair Broadcasting Group on another site and wondered about your take on the subject. I thought you had wrote about Sinclair, but I did a search and didn't find anything.

It might sound like Chicken Little but one could argue that this is one of the biggest threats to our country out there. I won't go into the details, read the link, but one company monopolizing the media/news outlets of the country scares the hell out of me.

Re: Off topic question

For future reference for yourself and any others who might have that problem, if you want to contact TD about a potential story scroll down to the very bottom of the page and use the 'Submit a story' link. That allows you to send them a message/link regarding a story you think they might be interested in.

I've seen a prostitution forum using Google platform already. The girls would offer their services in one section and the 'patrons' would discuss the quality of the service and rate it in another. Replace google for any social platform. This bill will most certainly be selectively abused to go beyond Backpage if it passes. And we'll see the internet imploding. In the US at least.

Re: Re: Re:

Fulsome support

I think the fastest way to get legislators to abandon all attempts to pursue secondary liability would be to lobby wholeheartedly for it, but make sure it also applies to the manufacture and sale of firearms.

Re: Fulsome support

This is the same kind of thinking that screwed up the patent office, trying to pretend "on the internet" makes something new and different.

This law is a huge prize for the largest contributors to Congress... the copyright cartels. They want the right to take all of the money Google, FB, etc. make because they argue that money is only because of their content.

Lets gut the internet, then people will be hard pressed to get real news about whats happening or be able to do research on a topic. Lets silence the voices of the dissenters, control the narratives, and we'll keep getting elected because we "care" about these poor victims.

Lets destroy any rule protecting those with the deepest pockets from being in court constantly & being found guilty for not having done enough to stop the horrible things.

The upside would be how quickly many of the political dynasties we've come to know and loathe would fall as the corps would pay well to get ANYONE into office who isn't willing to sacrifice corps to get a good soundbite about doing it "for the children".

Re: Re: Re: Fulsome support

I don't think that YouTube would be affected, and I don't see how that could be used for human trafficking.

You think that a tenuous connection wouldn't be sufficient for someone to try it? Besides, "advertising videos" would seem to be a pretty obvious, if icky, possibility. In fact, one could argue any extremist video encouraging young women to become so-called "ISIS Brides" would qualify as trafficking related, no?

Re: Re: Fulsome support

Perhaps you mistake my observation of an absurd reality for a call to action. In the current bizarro political climate, I would not suggest attempting such reverse psychology gamesmanship, as you might well get exactly what you are pretending to ask for.

Re: Fulsome support

but make sure it also applies to the manufacture and sale of firearms.

I'm surprised the howls of outraged gun supporters hasn't drowned out the conversation. In other fora they are quick to point out how much I wouldn't like it if they started regulating my 1st amendment rights. Next time I see that, I'll post "Well, when an offset press is used in the next mass shooing incident, we can look at that."

If I have to show ID to drive, cash a check and vote, I see no good reason I don't have to show ID to purchase the 250 rounds of ammo I use every month for target practice.

Re: Re: Fulsome support

What's more fun is that allowing AirBnb to be sued like this opens up another can of worms: how is what any hotel/motel does with on-line reservations (or even renting rooms in-person) sufficiently different as to render them less liable than AirBnb? If anything they have more knowledge of the activities than AirBnb and more control over honoring or refusing the reservation. This would be a huge sword dangling over the entire hospitality industry.

Re:

The can of worms it will actually open is attacks on upstart industries that are disrupting the ones that make campaign contributions. Just think, Uber and Lyft could be held responsible for providing transport of the victims to their clients.

Re:

This will even make Calexit even more desirable to Californians. If this goes through, I likely will vote yes on Calexit, so that Internet companies in an independent California would not subject to this law, as the United States would have no jurisdiction in an independent California.

Of course, one problem the Feds will have enforcing this is if California secession should succeed. It the voters approve the secession vote in November, and the secession vote passes in 2019, and California becomes an indepdent nation, this would throw enforcement of this into question, as a lot of the companies affected by this law would be in California, and not in the United States.

If California becomes independent, Internet companies in an independent California, will not be subject to the laws of the remaining United States.

If Silicon valley is no longer in the United States, the U.S. will no longer apply to any companies there.

At least two figure skating forums would not affected by this, because neither they, nor their are in the United States, so they could not be held liable if someone did put up a human trafficking post.

Figure Skating Universe is in Britain and GoldenSkate is in Canada. So for any figure skating fans here, these two sites are safe, as neither they, or their servers, are in the United States, so, therefore, their non-US admins would not be subject to prosecution in the United States. Goldenskate is only subject to Canadian laws and Figure Skating Universe is only subject to British laws.

If the Internet does implode, you will see a housing crash that will make 2008 like child's play. All the multimillion dollar homes will suddenly drop in value.

And those landlords dependent on rental income will see that all dissapper. Some places in the Sacramento area saw rent really drop off after the dotcom bust in 2001. Where I live, the rent is now $800 a month, but I found out that during the height the dotcom boom, in the late 90s, the same apartment I live in now was going for $1150 a month. And there were places going for $1600 a month that dropped down to $700

So this will go beyond the Internet. We could see a mortgage crisis worse than 2008. Rents will outright plummet.

When this happens, contractor services like sealcoating and painting will go under.

I do think that if this passes, we may well see the Second Great Depression.

If anyone owns any property in the Bay Area, you might want to sell now, and get your money while you can